WP/5884/2002 of M/s.Cormandal Prestcrete (Pvt.) Limited, Vs Chief General Manager (Engineering) on 31 December 2015

ORDER:

This writ petition is filed seeking writ of mandamus declaringthe action of the respondents in withholding the amount due to thepetitioner vide respondent’s letter bearing No.HMW&SB?MD/Payments/2001-2002, dated 07.02.2002 as illegal, arbitrary andagainst the principles of natural justice and consequently direct therespondents to forthwith release the amount due to the petitioneri.e., Rs.25,85,631/- along with performance guarantee amount ofRs.79,100/-.

2. Brief facts which are necessary for disposal of the writ petitionare that the petitioner is a registered Private Limited Companyengaged in manufacturing and laying pipelines for water supply,etc. The 1[st] respondent made a publication inviting tenders formanufacturing, supplying, lowering, laying, jointing, testing andcommissioning of 600 MM dia P.S.C Trunk Feeder Main from 5 MLcapacity G.L.S.R. at Alwal to Fathe Balaiah Nagar Sump in AlwalMunicipality. The estimated contract value is Rs.36,56,817.84 psand the approximate value of the work to be done under theagreement was Rs.31,61,037.40 ps. As the petitioner company hasquoted the lowest offer, after satisfying and fulfilling all theconditions, the work has been awarded to the petitioner companyand an order was also issued in its favour vide order No.DP?HMW.SSB.MegaCity/Pipeline/LOA/98-99/1307, dated 26.02.1999. An agreement was entered into by the petitioner with therespondent, under proceedings T.No.25/98-99, dated 24.03.1999. After completion of the work, the respondents have prepared acheque for Rs.11,11,320/- on 09.09.1999, but the same was notreleased and the same was kept with the respondents only. After completion of work, final bill has been prepared and submitted bythe petitioner on 26.05.2001 for the balance amount ofRs.16,15,713.90 ps. The total bill came to be Rs.27,27,028.90 psand M-book was signed by the respondents on 26.05.2001. Inspite of several reminders and requests, the said amount was notreleased though the work was completed 18 months back. TheBank guarantee amount of Rs.79,100/- was also withheld.

3. Ultimately, on 07.02.2002, the 2[nd] respondent had written aletter admitting the liability of the amount due to the petitioner for thework completed by it as Rs.25,85,631/-, which was calculated afterdeducting 2.5% tax and that the said amount had been adjustedtowards the matter which had been pending before Arbitrator. Theamount due for work done by the petitioner at Visakhapatnam,Water Supply Improvement Scheme, the respondents have adjustedagainst the amount due in this work and an amount ofRs.18,61,000/- has also been adjusted. The respondents haveenclosed a cheque for Rs.44,339.30 ps stating to be balanceamount due to the petitioner.

4. Additional affidavit is also filed by the petitioner stating thatsubsequent to the filing of the writ petition, the S.No.1 work referredto in the impugned letter(relating to Misrigunj work) was a subjectmatter of an Arbitration and the Arbitrator passed an Award for asum of Rs.1,97,372/- in favour of the petitioner on 15.03.2003. Against said Award, Petitioner filed O.P.Nos.16 and 17 of 2003 andthe respondent filed O.P.No.22 of 2003 to set aside the awardedgranted in favour of the petitioner. By common order, both the OPsfiled by the petitioner were dismissed and OP filed by therespondent was allowed setting aside the Award. Against theCommon order in Ops, the petitioner preferred CMA Nos.197 and264 of 2011 and C.M.A.No.351 of 2003 and same are pending. Unless and until these cases are decided, the respondents cannot

effect recovery on the alleged due under Misrigunj work and on thisground also, the impugned letter becomes in operative. In respectof paras 4.3 of the impugned letter, the work relating toVisakhapatnam, after dismissal of W.P.No.3500 of 1994, thepetitioner filed OS No.364 of 1997 on the file of the IV Senior CivilJudge, City Civil Court, Hyderabad and the same was dismissed on23.09.1994 on the ground of principle of res-judicata. Against thesaid judgment, CCCA No.250 of 1999 was filed. The Hon’bleDivision Bench of this Court allowed the appeal on 02.07.2013. Aggrieved by the said judgment, respondents preferred Spl. LeavePetition (Civil) CC No.6060/2014 before the Hon’ble Supreme Court,with a delay. By order dated 17.04.2014, the Supreme Courtcondoned the delay and dismissed the SLP. Thereafter, theMunicipal Administration and Urban Development (c ) Departmentissued G.O.Rt.No.780, dated 10.10.2014 for release of paymentcovered by order in CCCA No.250 of 1999, dated 22.07.2013. therespondent deposited a sum of Rs.40,20,362/- through RTGS on06.03.2015. Aggrieved by the action of the respondents in adjustingthe amount payable to the petitioner and denying payment of saidamount, the present writ petition is filed.

4. Counter affidavit is filed by the respondents denying theaverments in the affidavit filed in support of the writ petition statingthat the tender submitted by the petitioner was accepted.Consequent upon the acceptance of the tender of the petitioner, aforwarding slip to accompany original agreement dated 24.03.1999,a supplementary agreement dated 16.06.2001 was also executedbetween the petitioner and the first respondent and also on behalf ofthe 2[nd] respondent. As per Clause-8 of the forwarding slip, it isevident that the petitioner had signed the copy of the APDSS and itsAddenda Volume brought upto date, which is also enclosed to the Agreement and the same forms part of the Agreement. The billamount payable to the petitioner at Rs.27,27,028.90 PS is alsodenied and amount payable to the petitioner is said to beRs.25,85,631/-. The present writ petition is not maintainable againstthe issuance of impugned letter dated 07.02.2002 either in law or onfacts, since it is a dispute and as per Clause-73 of PS to APDSS,petitioner’s only remedy is to go to Civil Court of competentjurisdiction by way of regular suit as an effective and alternativeremedy, which is provided in the agreement itself executed by andbetween the parties. That the contracts/agreements, dated24.03.1999 and 16.06.2001 are ordinary civil contracts which are notstatutory contracts and contracts not involving public elementcannot be challenged in a writ petition for their breach and theremedy for such breach is to approach competent civil court. Similarly, the writ petition is not maintainable for recovery of moneyunder contracts. As per Clause-71 of A.P. Detailed StandardSpecification, it is not necessary that the amount must have beenpresently due and payable or must have been either admitted ordetermined by the Court or Atbitrator. The only requirement wasthat there was a claim for payment of money arising out of thecontract to justify action under Clause-71 for recovery. Arbitrationproceedings pertain to the works of Reach-I only. Following threeworks were entrusted to the petitioner and agreements were entered into by and between the parties.

i) 10.08.1981. Name of work: ‘supplying, laying, joining and testing1200mm, 1000mm and 900 mm dia PSC main from MisrigunjReservoir to Purana Haveli under remodelling scheme (Reach-I)

ii) 27.5.1987. Name of Work: ‘manufacturing, supply, delivery,lowering, laying, jointing, testing, excavation and refilling of1200mm dia PSC pipes, specials and valves for gravity main fromSingapur Balancing Reservoir to Osman Sagar GLSR, fromCh.250.00 to 500.00 (Reach-II)

iii) 27.5.1987. Name of Work: ‘manufacturing, supply, delivery,lowering, laying, jointing, testing, excavation and refilling of1200mm dia PSC pipes, specials and valves for gravity main from

Singapur Balancing Reservoir to Osman Sagar GLSR, fromCh.500.00 to 766.00 (Reach-III).

In all the three agreements, it is clearly mentioned that thepreliminary specifications to APDSS form part of the agreements. As such, Clauses-71 and 73 of PS to APDSS are applicable. Thepetitioner has to pay amounts to the respondents under the worksfor Reaches-I, II and III as follows:

The petitioner has invoked the arbitration clause for the workof Reach-I only and he has not invoked the arbitration clause for theworks of Reaches-II & III. The 1[st] respondent had written a letterdated 17.01.1994 to the Executive Engineer, Public Health Division, Visakhapatnam for withholding a sum of Rs.27,29,002/-. On01.03.1994, the petitioner had filed W.P.No.3500 of 1994 seekingwrit of mandamus declaring the letter dated 19.02.1994 issued bythe Executive Engineer, Public Health Division, Visakhapatnam asillegal and for setting aside the same and for direction to theExecutive Engineer, Public Health Division, Visakhapatnam to makefinal bill and release amounts due to him for the work executedunder agreement dated 04.03.1993 and the said writ petition wasdismissed by orders dated 06.03.1995. On 17.02.1997, thepetitioner filed OS No.364 of 1997 on the file of IV Additional Judge,City Civil Court, Hyderabad against Engineer-in-Chief, Public HealthDepartment, Public Health, A.C.Guards, Hyderabad and two othersseeking a decree for Rs.53,74,635/- along with interest at 25% p.aand costs. The said suit was dismissed with costs by judgment anddecree dated 23.09.1999. Aggrieved by the above judgment, thepetitioner preferred CCA No.250 of 1999 and also filed CMPNo.26645 of 1999. By orders dated 29.12.1999, this Court passedorders of stay on condition of the petitioner depositing 50% of thecost awarded within eight weeks. The above orders in W.P.No.3500of 1994 and judgment and decree dated 23.09.1999 in O.S.No.364 of1997 clearly establish that the writ petition as claimed and filed bythe petitioner is not maintainable either in law or in fact. Hence, therespondents have validly invoked clause-71 of PS to APDSS andwithheld the amounts by way of recovery from and out of theamounts payable to the petitioner from any work or contractundertaken by him both at Visakhapatnam and Alwal and sought fordismissal of the writ petition.

6. Learned counsel for the petitioner submits that the impugnedorder in the writ petition is illegal, arbitrary and the respondentscannot invoke clause 71 of APDSS unless and until the amount

claimed by the respondent is crystallized into an ascertainedamount by the Arbitrator or by a Competent Forum. He wouldfurther contend that respondent cannot adjust or appropriate theamount and that the petitioner specifically denied the amount by wayof reply dated 11.02.2002 to the impugned proceedings. That theMisrigunj work is covered by an arbitration award and the matter ispending in this Court. As far as work at Visakhapatnam isconcerned, the amount was decreed in favour of the petitioner bythis Court and confirmed in SLP by the Hon’ble Supreme Court. Sofar as work at Alwal is concerned, the subject matter of present writpetition and Osmansagar works, either party preferred any legalproceedings. He further submits that the disputed Osmansagarworks pertaining to Reach II and III were entrusted to the petitionerby the 1[st] respondent under agreement dated 27.05.1987,respectively and the petitioner completed the work in all respects. The respondents had supplied certain material such as cement,steel, H.T wire for manufacturing the pipes. The material accounthas to be reconciled by both the parties, but there was somediscrepancy in the account. The petitioner disputed the same byletter dated 11.07.1993. When petitioner has completed the work,without considering the same, the 1[st] respondent has called uponthe petitioner to return certain material such as HT wire, Cementand M.S.Plates in respect of both the works by the ExecutiveEngineer letters dated 04.12.1993 (Reach-II) and 31.12.1993(Reach-III). The petitioner addressed a letter dated 29.01.1994explaining the details and disputed the claim of the ExecutiveEngineer and also called for a meeting to amicably settle the issue. However, there was no reply. But unilaterally, the respondentwithout prior notice, issued the impugned letter dated 07.02.2002adjusting the amount due to the petitioner from Visakhapatnam work and the Alwal work towards the alleged dues under Misrigunj andOsmansagar (Reaches-II & III) works. The petitioner has disputedthe amounts due in respect of Misrigunj and Osmansagar (ReachesII & III). The petitioner denied the claim of Executive Engineer forexcess drawal of material to an extent if 2832 MT of cement and66.469 MTs of HT wire and this issue can be adjudicated only byarbitration as contemplated in the agreement. When the EMD &FSD to an extent of Rs.14,50,000/- is available, the respondent isnot justified in withholding huge amount. The exact amount was notquantified by any competent authority. He would further contendthat the respondent mentioned different figures in the letter andaffidavit at different stages. He would contend that the Misrigunjwork mentioned in the impugned letter was the subject matter ofarbitration, where the Hon’ble Arbitrator awarded a sum ofRs.1,97,372/- in favour of the petitioner by his Award dated15.03.2003 against which, both parties filed O.P.Nos.16/2003 underSection 17 of 1940 Act to make award rule of Court and O.P.No.17of 2003 under Section 30 to set aside the Award to the extent ofdisallowed claims. The respondent filed O.S.No.22/2003 underSection 30 to set aside the award granted in favour of the petitioner. By common order, both the OPs of petitioner are dismissed andrespondents OP was allowed and set-aside the award. Thepetitioner preferred CMA No.197 of 2011 against award inO.P.No.16 of 2003, C.M.A.No.264/2011 against Award in O.P.No.17of 2003 and C.M.A No.351/2003 against O.P.No.22 of 2003. Hewould further contend that unless and until these cases are decided,the respondents cannot affect recovery. He would further contendthat except two letters dated 04.12.1993 and 31.12.1993, asking thepetitioner to refund the materials, no specific letter was addressedgiving particulars of the amount now claimed and did not refer twoletters addressed by the petitioner on 11.07.1993 and 29.01.1994.

No reasonable opportunity was given to the petitioner to explain hiscase before effecting adjustment of amount, which is againstprinciples of natural justice. He also contends that the documentsreveal that the respondents made assessment and through theirinternal correspondence, initially arrived at the figure ofRs.32,13,474/- and thereafter, the same has been enhanced toRs.36,34,982.70 Ps. In support of his contention, he relied on thejudgments reported in M/s.Lakshmichand and Balchand v. State ofA.P[[1]],Stae of Karnataka v. Shree Rameshwara Rice Mills,[2]Thirthahalli, K.Raja Rao v. A.P.Industrial Development CorporationLimited rep. by its Managing Director, Hyderabad and another[[3]],G.Rajender Reddy and Company rep. by its Managing Partner,G.Rajender Reddy v. Government of Andhra Pradesh, rep. by itsPrincipal Secretary, Roads & Buildings Department and others[[4]]. Hewould further contend that the work was completed in the year 1993and the completion certificate was issued by the respondent on24.08.1993. The defect liability period of two years expired by1995. The respondent did not file any legal proceedings forrecovery of the alleged amount within 3 years there from i.e., before1998. As such, the demand of the respondent through impugnednotice dated 07.02.2002 is barred by limitation and the adjustmentmade by the respondents is illegal and unsustainable. Therespondent is making the claim against the petitioner, as such, therespondent has to invoke the forum for adjudication within limitation. He contends that in contractual matters, the writ petition ismaintainable when the state or its instrumentality acts arbitrarily andunfairly. In support of his contention, he relied on the judgmentreported in ABL International Limited and another v. Export CreditGuarantee Corporation of India Ltd., and others[[5]].

7. On the other hand, learned counsel for the respondent submitsthat the writ petition itself is not maintainable, as the petitioner isclaiming the amounts arising out of the contractual disputes. Healso submits that the petitioner has to approach the Civil Court asper clause 73 of APDSS since the amount the petitioner is claimingexceeding Rs.50,000/-. He also submits clauses 71 and 73 are partof the agreements and that the petitioner and respondents haveexecuted contract, as such, the respondents are entitled forinvoking the clause 71 of APDSS and withhold the amount due tothe petitioner in respect of dues of the petitioner in respect of othercontracts. He also submits that while petitioner is having alternativeremedy, he cannot seek remedy under Article 226 of theConstitution of India by filing writ petition for recovery of the amountarising out of the contractual obligations. He also contends thatwhen alternative remedy is available, this Court will not entertain thewrit petition. More so, the disputed questions of facts are involved. He submits that petitioner has not returned the excess materialsupplied to him in respect of other works and as a result, petitionerwas due some amount in respect of same and the authorities haveasked the respondent to withhold the amounts due to the petitioner. As such, the impugned proceedings were issued by invoking clause71 of APDSS and same cannot be faulted. In support of hiscontention, he relied on the judgments reported in Rajasthan StateIndustrial Development and Investment Corporation and another v.Diamond & Gem Development Corporation[[6]], State of U.P and others v.[7]Bridge and Roof Co.India Ltd.,, Industrial Finance Corporation IndiaLtd., New Delhi & Others v. Sree Krishna Oil Complex Limited,Hyderabad[[8]]and the Executive Engineer, Irrigation, Circle No.3,Nizamabad and another v. C.Raghava Reddy[[9]].8. Before dealing with the rival contentions, it is relevant to extract clauses 71 and 73 of Andhra Pradesh Standard Specifications for deciding the subject issue.

“Clause 71: Recovery of money from contractor in certain

cases: In every case in which provision is made for recoveryof money from the contractor, Government shall be entitled toretain or deduct the amount thereof from any moneys thatmay be due or may become due to the contractor underthese presents and/or under any other contract or contractsor any other account whatsoever.

Clause 73: Add the following the end of the Clause.

Settlement of claims above Rs.50,000/- in value.

For all claims above Rs.50,000/- in value either party shall go to the civil court of competent jurisdiction by way of regular suitand not by arbitration.”and not by arbitration.”

In view of the above factual back ground, the point thatarises for consideration in this writ petition is whether therespondents are entitled to adjust the amounts due to the petitionertowards dues to the respondents for an amount of Rs.44,02,292.70ps.

It is the claim of the respondents that they have adjusted theamount to be paid to the petitioner towards dues to the respondentas they are entitled to retain or deduct the amount thereof from anymonies that may be due or may become due to the contractor asper Clause 71 of the A.P.D.S.S. It is not the case of therespondents that they are not liable to pay any amounts to thepetitioner, but they are seeking to adjust the disputed amounttowards amount due from the petitioner in respect other works. Nodoubt, as per Clause 71 of the A.P.D.S.S, Government has powerto recovery money from the Contractor in certain cases in whichprovision is made for recovery of money from the contractor,Government is entitled to retain or deduct the amount thereof fromthe monies that may be due or may become due to the contractor. But in the present case on hand, learned counsel for the petitioner submits that the amount that is sought to be adjusted in respect ofdues to the respondent is not determined and that unless theamount due to the respondent is determined by the independentauthority, the same cannot be adjusted or deducted from theamounts due to the petitioner by the respondents. Even accordingto the counter affidavit filed by the respondents, it is not clearwhether the amounts are ascertained or not which were sought tobe recovered from the petitioner. Even according to the counteraffidavit of the respondents, arbitration proceedings are pending inrespect of item No.1 of the impugned order, however, as against theitem nos. 2 and 3, no arbitration proceedings are pending.

9. Clause 73 of the Andhra Pradesh Standard Specificationsprovides for all claims above Rs.50,000/- in value either party shallapproach the civil court of competent jurisdiction by way of regularsuit and not by arbitration. In the instant case, though the amountdue to the petitioner is admitted, but the respondents are seeking toadjust the same in respect of dues to the respondent in respect ofother contracts. According to the petitioner, the amount due to therespondents have not been ascertained or determined by therespondents, as such, respondents cannot adjust the amount of thepetitioner. The forum, which is established for claims aboveRs.50,000/- in value is civil court. In ABL International Limited andanother v. Export Credit Guarantee Corporation of India Ltd., and others (supra) the Hon’ble Supreme Court held as follows:

(supra) the Hon’ble Supreme Court held as follows:

“53.From the above, it is clear that when an instrumentality of theState acts contrary to public good and public interest, unfairly,unjustly and unreasonably, in its contractual, constitutional orstatutory obligations, it really acts contrary to the constitutionalguarantee found inArticle 14of the Constitution. Thus if we applythe above principle of applicability ofArticle 14to the facts of thiscase, then we notice that the first respondent being aninstrumentality of State and a monopoly body had to beapproached by the appellants by compulsion to cover its exportrisk. The policy of insurance covering the risk of the appellants wasissued by the first respondent after seeking all required informationState acts contrary to public good and public interest, unfairly,unjustly and unreasonably, in its contractual, constitutional orstatutory obligations, it really acts contrary to the constitutionalguarantee found inArticle 14of the Constitution. Thus if we applythe above principle of applicability ofArticle 14to the facts of thiscase, then we notice that the first respondent being aninstrumentality of State and a monopoly body had to beapproached by the appellants by compulsion to cover its exportrisk. The policy of insurance covering the risk of the appellants wasissued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceedingRs.16 lacs. On facts we have found that the terms of the policydoes not give room to any ambiguity as to the risk covered by thefirst respondent. We are also of the considered opinion that theliability of the first respondent under the policy arose when thedefault of the exporter occurred and thereafter when KazakhstanGovernment failed to fulfil its guarantee. There is no allegation thatthe contracts in question were obtained either by fraud or bymisrepresentation. In such factual situation, we are of the opinion,the facts of this case do not and should not inhibit the High Court orthis Court from granting the relief sought for by the petitioner.”

b) In the Executive Engineer, Irrigation, Circle No.3,Nizamabad and another v. C.Raghava Reddy (supra), a DivisionBench of this Court held as follows:

“25. We are therefore of the opinion that the learned SingleJudge erred in issuing a writ of mandamus interdicting therespondents who are the appellants before us from enforcingthe terms of Clause 71 of the A.P. Detailed StandardSpecifications which was part of agreement No.10/83 dated5-9-83 which the petitioner had entered into with the State,represented by the respondents.”

c ) I n Rajasthan State Industrial Development andInvestment Corporation and another v. Diamond & GemDevelopment Corporation Limited and another (supra),the Hon’ble Supreme Court held as follows:

“19. There can be no dispute to the settled legal proposition thatmatters/disputes relating to contract cannot be agitated norterms of the contract can be enforced through writ jurisdictionunderArticle 226of the Constitution. Thus, writ court cannot bea forum to seek any relief based on terms and conditionsincorporated in the agreement by the parties. (Vide:BareillyDevelopment Authority & Anr. v. Ajay Pal Singh & Ors., AIR1989 SC 1076; andState of U.P. & Ors. v. Bridge & Roof Co.(India) Ltd., AIR 1996 SC 3515).

21. It is evident from the above, that generally the court shouldnot exercise its writ jurisdiction to enforce the contractualobligation. The primary purpose of a writ of mandamus, is toprotect and establish rights and to impose a correspondingimperative duty existing in law. It is designed to promote justice(ex debito justiceiae). The grant or refusal of the writ is at thediscretion of the court. The writ cannot be granted unless it isestablished that there is an existing legal right of the applicant,or an existing duty of the respondent. Thus, the writ does not lie

to create or to establish a legal right, but to enforce one that isalready established. While dealing with a writ petition, the courtmust exercise discretion, taking into consideration a widevariety of circumstances, inter-alia, the facts of the case, theexigency that warrants such exercise of discretion, theconsequences of grant or refusal of the writ, and the nature andextent of injury that is likely to ensue by such grant or refusal.

39. The cancellation of allotment was made by appellant-RIICO in exercise of its power under Rule 24 of the Rules 1979read with the terms of the lease agreement. Such an order ofcancellation could have been challenged by filing a reviewapplication before the competent authority under Rule 24 (aa)and, in the alternative, the respondent- company could havepreferred an appeal under Rule 24(bb)(ii) before InfrastructureDevelopment Committee of the Board. The respondent-company ought to have resorted to the arbitration clauseprovided in the lease deed in the event of a dispute, and theDistrict Collector, Jaipur would have then, decided the case.However, the respondent- company did not resort to either ofthe statutory remedy, rather preferred a writ petition whichcould not have been entertained by the High Court. It is asettled law that writ does not lie merely because it is lawful todo so. A person may be asked to exhaust thestatutory/alternative remedy available to him in law.”

d) In State of U.P and others v. Bridge and Roof Co.India Ltd., (supra)

the Hon’ble Supreme Court held as follows:

“16. Firstly, the contract between the parties is a contract inthe realm of private law. It is governed by the provisions of thecontract Act or may be,also by certain provisions of the sale ofGoods Act.Any dispute relating to interpretation of the termsand conditions of such a contract cannot be agitated, and couldnot have been agitated,in a writ petition. That is a matter eitherfor arbitration as provided by the contract of for Civil court asthe case may be. whether any amount is due to the respondentfrom the appellant-Government under the contract and,ifso,how much and the further question whether retention orrefusal to pay any amount by the Government is justified, or notare all matters which cannot be agitated in or adjudicated uponin a writ petition. The prayer in the writ petition,viz.,to restrainthe Government from deducting particular amount from the writpetitioner's bill(s) was not a prayer which could be granted bythe High court underArticle 226.Indeed, the High Court has notgranted the said prayer.”

e) Industrial Finance Corporation India Ltd., New Delhi & Others v.

Sree Krishna Oil Complex Limited, Hyderabad (supra), a Division Bench of this Court held as follows:

18. In the instant case, as pointed out supra, the agreemententered into between the parties are ordinary civil contracts withoutinvolving operation of any statute or public element. Therefore,even assuming that the banks and the financial institutions havecommitted omissions and commissions in the matter ofdisbursement of the agreed loan amount in breach of theagreements entered into between them, as alleged by therespondent company in its writ affidavit, such omissions andcommissions on the part of the banks and the financial institutionswould, at the most, amount to a breach of an ordinary civil contract,in respect of which no relief can be granted in a writ petition byinvoking the extraordinary jurisdiction of this Court underArticle226of the Constitution and the respondent company has toworkout its remedies in a competent civil Court by way of a suit fordamages and/or for specific performance.

21. As is well known, one of the grounds against the exercise ofdiscretionary power vested in the High Court underArticle 226ofthe Constitution is where disputed facts have to be investigated.The reason is that when such dispute exists between the parties,the right claimed by the petitioner is not capable^ of beingestablished in the summary proceedings underArticle 226of theConstitution, because, it requires a detailed examination of theevidence as may be had in a suit. The primary object ofArticle 226is the enforcement of an established right and not the establishmentof a right or title. A petition underArticle 226of the Constitutioncannot be converted into a suit to resolve the factual controversies.The same principle has been extended even to mixed questions offact and law by Courts. After perusing the pleadings of the parties, itis not possible for us to conclusively record findings on the factualpleas urged by the parties. It requires investigation of disputed factsby permitting the parties to lead evidence and it also involvesappreciation of evidence that may be so led by the parties. ThisCourt cannot be converted into a trial Court in exercising its powerunderArticle 226of the Constitution, particularly when the parryapproaching this Court underArticle 226can work out his/itsremedy by approaching a competent and jurisdictional civil Court.The disputed questions that arise for decision in the instant casecannot be resolved on the basis of the pleadings and thedocuments produced by the parties, and in fact it requires furtherinvestigation into the disputed facts.

22. In general, a disputed question of fact is not investigated ina proceeding underArticle 226of the Constitution, particularlywhere an alternative efficacious remedy is available andwhere no effective and conclusive decision cannot be takenon the basis of the pleadings and the documents filed in thewrit petition. This position is well settled by the judgments inUnion of India v. Ghaus Mohammad, ,Bokarao and Ramgur

Limited v. State of Bihar, ,Moti Das, Mohant v. Sahi, S.P., ;Principal, Industrial Training Institute, Gahazipur v. AbhayKumar Srivastava, 1995 Supp. (4) SCC 617,U.P, StateMineral Development Corporation v. K.C.P. Sinha, ,State ofM.P. v. M.V. Vyavsaya, ,State Bank of India v. State Bank ofIndia Canteen Employees' Union, ,Ram Badan Rai v. Unionof India, ,Chairman, Grid Corporation of Orissa Limited v.Sukamani Das, ,Indian Overseas Bank v. IOB Staff CanteenWorkers Union, ,Factory Manager, CIMMCO Wagon Factoryv. Virendra Kumar Sharma, (, andJai Singh v. Union of India, ,to cite a few. Further, inUnion of India v. Verma T.R., , andBurmah Construction Company v. State of Orissa, , theSupreme Court held that claims arising out of breach ofcontract or tort where it becomes necessary to investigate intothe disputed questions cannot be entertained underArticle226of the Constitution.In Maheswar Prasad Srivastava v.Suresh Singh, AIR 1976 SC 1766, the Apex Court held thatthe determination made by an expert body, in the absence ofmala fides, cannot be interfered by exercising the power underArticle 226of the Constitution. Since the factual pleas put forthby the parties to the writ petition do involve investigation ofdisputed facts and recording findings on pure questions offact, it is appropriate that this Court should have declined toentertain the writ petition.

f) In M/s.Lakshmichand and Balchand v. State of A.P (supra) the Hon’ble Supreme Court held that the amount sought to be adjustedhas yet to be determined as a liability against the contractor. But,in the present case on hand, clause 73 of A.P. Detailed StandardSpecifications forms part of the contract which goes to show that analternative remedy is provided for the claims above Rs.50,000/-.When alternative remedy is available, ordinarily it is for the party toavail the alternative remedy as held in ABL International case(supra). It does not mean that the present writ petition is notmaintainable but this Court will not entertain the writ petition whenalternative remedy is provided for. More so, the dispute inM/s.Lakshmichand and Balchand v. State of A.P (supra), arising out ofsuit proceedings, as such, the said decision is not applicable to thefacts of the present case. Though the learned counsel for thepetitioner has taken a plea of limitation, the same is not reflected inthe pleadings in the writ petition, as such, the said issue cannot be decided in the writ petition.

The petitioner has relied on the decisions reported in K.RajaRao v. A.P.Industrial Development Corporation Limited rep. by itsManaging Director, Hyderabad and another (supra) and G.RajenderReddy and Company rep. by its Managing Partner, G.Rajender Reddy v.Government of Andhra Pradesh, rep. by its Principal Secretary, Roads &Buildings Department and others (supra) are not applicable to thefacts of the present case as they are arising out of revenuerecovery act. In the instant case, the issue is governed by Clauses71 and 73 of the A.P.Detailed Standard Specifications, as such, thesaid decisions are not applicable to the facts of this case.

Arguments

Learned counsel for the petitioner had relied on the judgment ofthis Court in B.C.Mulajkar v. Government of Andhra Pradeshrepresented by its Secretary, Industries and Commerce Department, andothers[[10]],wherein the issue was with regard to the determination ofliability under Madras Revenue Recovery Act. In D.Nageswaraiah v.Government of Andhra Pradesh and others[[11]],the issue arising out ofexcess amount paid to the contractor, as such, the deposits i.e.,FSD and EMD amounts were forfeited towards the excess paymentmade to the contractor. In the instant case on hand, the subjectissue was governed by Clauses 71 and 73 of the A.P.DetailedStandard Specifications. As such, the said decision is notapplicable to the facts in the present case.

In view of the above facts and circumstances, when alternativeremedy is available as per Clause 73 of the A.P.D.S.S., this Courtis not inclined to entertain the writ petition. Since, the aspectwhether respondents are entitled to adjust the amount due to thepetitioner in respect of amount due by the petitioner to therespondents, is a disputed question of fact, cannot be decided byexercising the power of judicial review.

In the aforesaid background, I do not see any merit in the writpetition and same is liable to be dismissed.

Accordingly, this writ petition is dismissed. However, thisorder will not preclude the writ petitioner from availing alternateremedy available under law. There shall be no order as to costs.As a sequel thereto, miscellaneous petitions, if any, pending in thiswrit petition, shall stand dismissed.

____________________________

A.RAJASHEKER REDDY, J

31.12.2015kvs

HON’BLE SRI JUSTICE A. RAJASHEKER REDDY

W.P.No.5884 of 2002

Date: 31.12.2015.

kvs

[1]AIR 1987 Supreme Court 20AIR 1987 Supreme Court 20

[2]AIR 1987 Supreme Court 1359AIR 1987 Supreme Court 1359

[3]2013 (2) ALT 366 (DB)2013 (2) ALT 366 (DB)

[4]2013 (1) ALT 6822013 (1) ALT 682

[5](2004) 3 Supreme Court Cases 553(2004) 3 Supreme Court Cases 553

[6](2013) 5 Supreme Court Cases 470(2013) 5 Supreme Court Cases 470

[7]AIR 1996 Supreme Court 3515AIR 1996 Supreme Court 3515

[8]2002 (3) ALT 168 (D.B)2002 (3) ALT 168 (D.B)

[9]1992 (2) ALT 80 (D.B)1992 (2) ALT 80 (D.B)

[10]AIR 1971 Andhra Pradesh 169 (V.58 C 31)(1)AIR 1971 Andhra Pradesh 169 (V.58 C 31)(1)

[11]2013 (3) ALD 494 (DB)